Justice Fortas on Presidential Indictment

A few weeks ago I wrote on post on Balkinization announcing that I’ve come into possession of a previously unknown draft article written by Justice Fortas during Watergate (after he was no longer on the Court). I’m going to figure out how to deliver this to the institution that holds the Justice’s papers. In the meantime, though, one observation that caught my attention was this:

“A President is accountable for criminal acts, if he has committed them, like any other citizen. He may be removed from office. He may be prosecuted after impeachment and removal from office; and, in theory, nothing in the Constitution itself would bar indictment and prosecution even while he is in office–unwise and infeasible as this may be in practice. There is no constitutional difference in this respect between a President or Vice-President, a federal judge or any other civil officer of the United States–despite assertions to the contrary.”

The question of whether a President can be prosecuted while in office, of course, is very controversial.